Friday, February 10, 2017

After appeals court ruling, Trump has two unappealing options

The Ninth Circuit, the appeals court for the western United States, refused to lift the temporary restraining order (TRO), which prevents the government from implementing President Trump's immigration executive order. It was a short trip to the Ninth Circuit, and the lawyers for the government leave it bruised, though not beaten.

Like most court decisions, the Ninth Circuit's opinion has exciting bits and boring bits, but the boring bits are often the most important. Let's discuss the exciting part first: Who will likely win?

In considering a TRO, the law requires the court to guess which party will prevail. This is called "likelihood of success."

The Ninth Circuit held that the plaintiffs were likely to win on the claim that the executive order deprives persons "of life, liberty, or property, without due process of law." Based on prior Supreme Court cases, the Ninth Circuit held that the Due Process Clause applies broadly, not just to citizens: "(A)liens who are in the United States unlawfully . . . have due process rights as well."

The plaintiffs also claim that the executive order amounts to religious discrimination. The Ninth Circuit "reserve(d) consideration" on this point. Nevertheless, the court observed that the trial court could consider evidence beyond the language in the executive order itself.

This is crucial, because plaintiffs' case hinges on numerous statements by President Trump and his advisors that they intended to implement a ban on Muslims.

Now to the boring, but crucial parts. The government argued that the courts should not even hear this case, based on the doctrines of standing and political questions. Let's consider them in turn.

The Constitution limits courts to hearing "cases" or "controversies." A potential plaintiff can't just sue because she is angry. Courts can only get involved if the plaintiff has suffered some concrete and individual harm. The courts call this "standing."

The plaintiffs, the states of Washington and Minnesota, argued that their public universities were harmed because of the executive order's effect on international faculty and students from the seven designated nations. The Ninth Circuit agreed.

The Ninth Circuit also agreed that the courts had the power to review the executive order. Some matters - for example, strategic decisions in a war - are essentially unreviewable by a court. These matters are "political questions," meaning that they are left solely to the elected branches of the U.S. government.

The U.S. argued that immigration is one of those matters. This was always an uphill battle for the government, because the courts have, in fact, reviewed important immigration matters before, including in INS v. Chadha, taught in most constitutional law classes.

The Trump administration has two additional reasons to be worried about this decision.

First, it will likely lose the next round of litigation, concerning the preliminary injunction (a court order made in the early stages of a lawsuit which prohibits the parties from doing an act in order to preserve the status quo).

Ordinarily TROs last at most two weeks and are not reviewable by a higher court such as the Ninth Circuit. There is an exception when a TRO operates essentially like a preliminary injunction, which can last as long as the case itself. The only reason why the Ninth Circuit reviewed the TRO was because "the district court's order possesses the qualities of an appealable preliminary injunction."

Why is this important? The trial court in this case has set a schedule to hear the plaintiffs' request for a preliminary injunction. If the trial court grants that preliminary injunction, it may be safe in the appeals court, since the Ninth Circuit has already treated the prior TRO as if it were a preliminary injunction.

Second, the Trump administration may be saddled with these Ninth Circuit judges in the future. On a later appeal, a party can request the same judges as heard the first appeal. The judges can decide whether or not to grant that request, but if you were a judge on this case, wouldn't you want to stay on it?

What happens next? The government can ask the Supreme Court to review the Ninth Circuit decision or, before that, have a larger, en banc panel of the Ninth Circuit consider the case.

It is very unlikely that the government will seek en banc review, and even less likely that the Ninth Circuit would grant it. It is impossible to predict what the Supreme Court will do, but in recent, controversial matters, the court has proceeded slowly. It was more than six years after the establishment of the Guantanamo Bay detention camps that the Supreme Court ruled on the habeas corpus rights of persons detained there.

The most likely result of the past few days' legal maneuvering is that the case returns to the trial court for further, less rushed, proceedings. And when the parties appear again before Judge Robart, the plaintiffs will be further ahead than they were six days ago.

William Fernholz is a lecturer-in-residence at the UC Berkeley School of Law and the director of its appellate and competitions programs.

The views expressed by contributors are their own and are not the views of The Hill.